Experts poke holes in family law, make the case for divorce by mutual consent

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Lawyer Judy Thongori.
Lawyer Judy Thongori.
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Harold Ayodo
Concerns have come to the fore over family laws that compel spouses to remain bed fellows in marriages that are empty shells.

Lawyers attending a recent Continuing Professional Development (CPD) Seminar on Family Laws at Hilton Hotel in Nairobi are now calling for amendment of family laws to allow spouses to divorce on mutual consent – which is currently not allowed.

In daily life, when marriages hit the rocks, some couples prefer to end it with as little trauma as possible – by mutual consent as provided for in countries like the US and India. Locally, it is an insurmountable hurdle to convince the court to admit a divorce petition on mere grounds that the marriage is not “working out”.

First, the law provides that couples may seek divorce after being married for three years unless proven that the union has irretrievably broken down.

The three-year rule does not apply if the couple is under judicial separation, that is, if a court ordered that they stop living under one roof as husband and wife.

Family lawyer Judy Thongori who presented a paper titled “Recent Jurisprudence in Matrimonial Property”, however, said that the law must be amended in order to allow mutual consent divorce.

“Mutual consent is currently not a ground for divorce in Kenyan law as it is in countries like the United States,” Thongori said, adding that Parliament must amend local family/matrimonial laws before allowing spouses to call it quits on mutual consent.

“Some are of the opinion that spouses should not undergo the full courtroom process when they both do not want to stay together anymore,” Thongori argued.

The main grounds of divorce in Kenya are adultery, desertion for at least 3 years preceding the filing of the divorce petition, and cruelty.

Others are when a spouse is of incurably unsound mind and under continuous treatment for at least five years preceding the filing of the divorce petition, and if filed by the wife, that the husband has been guilty of rape, sodomy, or bestiality.

In the US, divorce by mutual consent is the quickest and easiest way to end a marriage as both parties (husband and wife) agree to everything before setting foot inside a courtroom.

In cases where there is nothing to fight about, the court only signs off on the mutual agreement made by the parties regarding property division, spousal and child support, and child visitation.

Moreover, the parties complete a single consent petition which tells the court that both parties want the divorce and there are no contested issues as to property division, support or responsibilities to any minor children.

The consent petition must be signed by both parties and notarised before being filed in court within the jurisdiction where both parties reside.

However, some jurisdictions require a consent property settlement and parenting plan to accompany a consent petition.

A property settlement details division of all the real and personal property owned by the parties and any spousal support the parties have mutually decided upon. A parenting plan describes support and visitation for any minor children of the marriage – documents must be signed by both parties and notarised before they are filed in court.

On matrimonial property, Thongori is of the opinion that it is inconvenient for spouses to wait for divorce before division of matrimonial property.

In a polygamous marriage, a wife must divorce before seeking her share in matrimonial property in line with some sections of the Matrimonial Property Act.

Jane Gachuiga questions the legal basis for not dividing matrimonial property before a marriage is dissolved, arguing that “division of matrimonial property should not be predicated on either dissolution of marriage or divorce.

Lawyers follow proceedings during the Seminar.
Lawyers follow proceedings during the Seminar.

Theresa Omondi of the Federation of Women Lawyers (Fida-Kenya) avers that Sections 7 and 8 of the Matrimonial Property Act are unconstitutional, as they glaringly impose condition to enjoyment of property right in contravention of the Constitution.

Lawyer John Chigiti who presented a paper titled “Human Rights and Family Law” opines that human beings are born with a bundle of rights.

“Article 45 of the Constitution provides that the family is the natural and fundamental unit of society and necessary basis of social order and shall enjoy the recognition and protection of the State,” Chigiti argued.

However, even as debate rages on the dissolution of marriages by mutual consent, High Court Judge Lady Justice Jacqueline Kamau says that family dispute can be resolved by mediation.

“Family disputes include custody, access, maintenance, division of property, probate and succession, and domestic violence,” Justice Kamau says.

Justice Kamau, who presented a paper titled “Mediation in Family Disputes”, said that Article 59 of the Constitution provides for Alternative Dispute Resolution (ADR). “ADR includes mediation, which is a method many parties in developed countries use to resolve disputes.”

“There are inordinately long periods before conclusion of litigation matters. We have many interlocutory applications, congestion and closure of court diaries and adversarial nature of lawyers who are not open to negotiations.”

She adds that advantages of mediation include cost effectiveness, speed, and confidentiality. They are also informal and flexible.

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